556 S.W.3d 548
Ark. Ct. App.2018Background
- Mother (Colston) had primary custody of child; father (Williams) had visitation per 2009 paternity/visitation order.
- Recurrent litigation: contempt findings against Colston for interfering with communication/visitation and orders requiring counseling and visitation plans.
- February 2017: parties entered an agreed visitation order; shortly thereafter Colston applied for and was hired for a job requiring relocation to Denver but did not inform Williams until she filed to modify visitation in June 2017.
- Colston sought to relocate with the child to Denver; Williams opposed, arguing the move would thwart his visitation and harm the parent–child relationship.
- The circuit court found Colston’s motive was to frustrate visitation, relied on credibility findings and prior contempt history, and denied the relocation petition; ad litem recommended denial.
- Colston appealed the January 3, 2018 denial, arguing the move was in the child’s best interest (career advancement and similar opportunities) and that the court improperly considered past conduct and the agreed order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether relocation is in the child’s best interest under Hollandsworth factors | Colston: job advancement and comparable educational/health opportunities justify move; presumption favors custodial parent | Williams: move was timed to thwart visitation, would harm father–child relationship and reduce extended-family support | Court denied relocation: credible findings show motive to frustrate visitation, factors (visitation, extended family, child preference age) weigh against move |
| Whether court erred by considering custodial-parent’s past interference and ‘‘going behind’’ the agreed order | Colston: court should not have revisited or given weight to prior litigation lull or past conduct when parties agreed in Feb 2017 | Williams: prior interference and contempt are relevant to best-interest and to rebut relocation presumption | Court held prior interference and contempt were appropriately considered; presumption in favor of relocation can be rebutted when move aims to thwart visitation |
Key Cases Cited
- Parker v. Parker, 75 Ark. App. 90, 55 S.W.3d 773 (2001) (standard of review for relocation/child custody findings)
- Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003) (factors to determine relocation and best interest)
- Cooper v. Kalkwarf, 2017 Ark. 331, 532 S.W.3d 58 (2017) (modification on other grounds to Hollandsworth framework)
- Favano v. Elliott, 422 S.W.3d 162 (Ark. App. 2012) (deference to trial court credibility findings in custody matters)
- Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997) (custodial parent’s interference can be considered in best-interest analysis)
- Sill v. Sill, 94 Ark. App. 211, 228 S.W.3d 538 (2006) (presumption favoring custodial parent’s relocation may be rebutted if relocation aims to thwart visitation)